Cody v. New York & New England Railroad

Devens, J. It was admitted that the collision between the train on which the plaintiff was a passenger and another train coming in the opposite direction occurred through the negli [468] gence of the defendant’s servants. The question for the jury was only whether the plaintiff was himself in the exercise of due care, or was guilty of negligence which contributed to his injury. The plaintiff had taken his seat in the after compartment of the combination car which was appropriated to smokers, the forward compartment being used for baggage, and was reading his paper when the train started. He did not at first notice that the train had commenced its journey, but after it was fairly under way observed it, and was aware from his knowledge of the time of the trains that it was in serious danger of a collision, which might occur at any moment. He threw down his cigar, passed into the baggage compartment of the car, stood at the door with his hand upon the knob prepared to jump, and did jump just before the two trains collided. If a passenger is in so dangerous a situation, by reason of the peril arising from an accident for the occurrence of which those who undertake to transport him are responsible, as to render his jumping a reasonable precaution, and is injured thereby, they are answerable to him in damages, even if he might safely have retained his seat. Ingalls v. Bills, 9 Met. 1. Sears v. Dennis, 105 Mass. 310. Worthen v. Grand Trunk Railway, 125 Mass. 99. Linnehan v. Sampson, 126 Mass. 506. It is the contention of the defendant, that the action of the plaintiff in going into the baggage compartment showed a lack of due care on his part which should prevent him from maintaining this action, that he was wrongfully there without any justifying emergency, and thus that he assumed all the risks incident thereto. Bates v. Old Colony Railroad, 147 Mass. 255, 265. The plaintiff did not go into the baggage compartment for the purpose of being there transported, but in order to do something to save himself if a collision occurred. He was accustomed to the management of railroads, had often worked upon them, and might expect that he could, with a reasonable chance of safety, leap from the train when collision was imminent. The defendant urges that, as by his own admissions it appears that the plaintiff knew that the place he assumed was more dangerous than the place he left, and that the rear car was the safest place in the train, these facts are conclusive that the plaintiff was negligent in going there. No such con [469] elusion follows: the place where he sat and the rear car were safer if the plaintiff proposed to do nothing to extricate himself from the peril in which the defendant had placed him. He could not in either place ascertain when the collision would take place, and could there only abide the shock. Nor could he g to the end of the rear car without danger; he could not te when the collision would occur; it might be that he would 1 thrown down in passing from one car to the other, or in walking along the aisle of the car with his back to the engine, when he would be in most serious danger. Even if all the passengers in the two cars who remained in their seats in ignorance of the impending danger had escaped without injury, it would not be conclusive that the plaintiff was guilty of negligence in going into the baggage car, or had recklessly or unwisely misjudged what was prudent for him to attempt. Buel v. New York Central Railroad, 31 N. Y. 314, 318. The prudence of the plaintiff’s conduct is not necessarily to be tested by the results of the accident to others in a different position. Even if it were, as the exceptions show that serious injury did result to those who were sitting or moving in those parts of the train appropriated to passengers, it is entirely possible that the plaintiff would have sustained more serious injury if he had remained in his seat, or had attempted to reach the end of the rear car, than he did by his action. The question whether the plaintiff acted with due and reasonable care, under all the circumstances, was one peculiarly for the jury, and was submitted to them under proper instructions. Exceptions overruled.